Alfred De Witt Mason, Appellant, v. Minnie H. Scott and Others, Defendants. Annie Sholtz, Purchaser, Despondent

Alfred De Witt Mason, Appellant, v. Minnie H. Scott and Others, Defendants. Annie Sholtz, Purchaser, Despondent. Forecloswe sale — what proof is required that the heirs of a deceased owner joined in the mortgage— when a purchaser will he relieved from Ms hid. The purchaser at a sale, in an action to foreclose a mortgage executed after the owner of an undivided half of the mortgaged premises had died intestate, will not be compelled to complete his purchase where it does not appear by any record, or in the proceedings to compel the completion of the purchase, that all the heirs of the deceased cotenant joined in the mortgage. The affidavit of one of the plaintiff’s attorneys, that two of the mortgagors were the only heirs of the intestate, and that he received such information from one of such persons and from the surviving cotenant, is not sufficient proof of that fact, especially where he presents no excuse for not producing the affidavit of the persons from whom the information was obtained. Appeal by the plaintiff, Alfred De Witt Mason, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of January, 1900, relieving Annie Sholtz, the purchaser at the sale under the mortgage foreclosure in this action, from her bid on said sale, with notice of an intention to bring up for review upon such appeal the final judgment entered herein on the 23d day of October, 1899. H. H. Snedeker, for the appellant. Henry A. Uterhart [John J. Graham with him on the brief], for the purchaser, respondent. [MAJORITY — Pee Curiam :] Pee Curiam : There were several objections to the title in this case, but it is necessary to call attention to only one of them, as that is amply sufficient to sustain the order appealed from. In 1892 Ella E. Hopkins was seized in fee simple of an undivided one-half Of the mortgaged premises, in common with her sister Minnie H. Scott, having acquired title under the will of her mother,' Elizabeth Scott. The mortgage foreclosed in this action was executed on October 9, 1896, by Minnie IT. Scott, Ella E. Hopkins, Fred S. Hopkins and Lydia Hopkins, his wife. It is alleged in behalf .of the plaintiff that the first Ella E. Hopkins, to whom the property was thus devised in 1892, died intestate in 1893, leaving as her only heirs the Ella E. Hopkins and Fred S. Hopkins who are two of the above-named mortgagors. This fact, however, is not made to appear by any record, nor is it sufficiently proved in the present proceeding. We have nothing on the subject here except the affidavit of one of the attorneys for the plaintiff, in which he states that he has received the foregoing information from Fred S. Hopkins and Minnie H. Scott. This is hearsay, without even the suggestion of an excuse for not producing the affidavits of the persons from whom the information was derived. The mortgage did not cover the whole title unless it was executed by all the heirs of the first Ella E. Hopkins, and the proof that all such heirs did join in it was defective. As in the case of Walton v. Meeks (120 N. Y. 79), it did not necessarily appear that there might not be some other heir who could assert some claim to an interest in the property. In the case cited the Court of Appeals held that for this reason the plaintiff therein was justified in declining to accept the deed; and on like grounds we think that the purchaser in the present proceeding was entitled to be relieved from her bid. All concurred. Order affirmed, with ten dollars costs and disbursements.